6th Circuit Raises Major Questions Doctrine in the FCC's Title II Broadband Classification
A three-judge appeals court panel hearing a challenge (docket 24-7000) of the FCC's Title II reclassification of broadband questioned industry groups and the agency Thursday about the major questions doctrine (see 2409030030). Oral argument was held at the 6th U.S. Circuit Court of Appeals, where judges also questioned the relationship between the doctrine and Chevron deference, as well as the statutory interpretation of the Communications Act and the FCC's changing positions over time.
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"I see the Supreme Court as establishing the doctrine to counter Chevron," said Judge Richard Griffin. "I recognize the Supreme Court has not abrogated the doctrine post-Chevron," Griffin said, asking if it "make[s] any sense to apply it post-Chevron." Attorney Jeff Wall for the industry groups said that the court's decision overturning Chevron doesn't undermine the major questions doctrine. "I have complete confidence that the Supreme Court has not gotten rid of the major questions doctrine and would apply it" if conditions for the doctrine were triggered.
Jacob Lewis, FCC associate general counsel, asserted the agency's authority to classify broadband and that it qualifies as a Title II telecom service. Lewis argued that the case was an issue of statutory interpretation and not major questions. "Major questions doctrine is triggered by an agency's unexpected claim to significant power," Lewis said. The classification of telecom service is "a fundamental definition in the Communications Act," he said: "It's not unexpected."
"I'm much more interested in what the words mean this morning than a doctrine," said Judge Raymond Kethledge, asking Wall for an explanation of how verbs in the definition of an "information service" apply to web browsing. Kethledge asked whether telecom is "simply the transmittal of information." Wall said it is, but internet access is an information service "because it offers this capability."
Congress intended for the internet to evolve through the market, not regulation, and didn't intend for broadband to be treated as a common carrier service, Wall said. He also cited the Telecom Act of 1996's language stating a policy of keeping the internet "unfettered by federal and state regulation."
Lewis argued that the petitioners "are confusing the highway with the destination." Broadband providers don't fall under an information service because they "bring you to the internet, but they are not the internet," Lewis said. "If the capability is read that broadly, then it destroys the distinction between telecom service and information service."
Griffin questioned whether the FCC's changing positions throughout the years on classification undermines the Communications Act's clarity. Lewis acknowledged that the agency's position has changed over time, but that doesn't necessarily mean the statute is unclear. The court, he added, still must determine the best reading of the law. "Even if the major questions doctrine applied, it's clear that Congress expected the commission to identify services" that fell under information or telecom services, Lewis said.